Practical Administrative Law Notes 1

Learning Unit 1

Learning Objectives:

1. What does Administrative Law entail as a branch of Public Law?

Administrative law is a core component of public law in South Africa. It focuses on

how public power is exercised and controlled, ensuring fairness, accountability,
and legality in governmental decisions and actions. Since 1994, it has evolved into a
constitutional right-based system, with Section 33 of the Constitution and the
Promotion of Administrative Justice Act (PAJA) forming its foundation.

✳️Key Features of Administrative Law:

✅ Definition and Function

 Administrative law is that part of constitutional law that:

o Empowers public officials to carry out lawful duties.
o Holds them accountable when they misuse or exceed their powers.
 It regulates a broad spectrum of daily public interactions, from licensing to
service delivery.

✅ Empowerment vs Accountability

 Empowerment: Authorises public administration to deliver services.

 Accountability: Ensures that power is exercised fairly, legally, and
transparently.
 Two theoretical views:
o Red light theory: Limits public power through judicial review.
o Green light theory: Encourages efficient decision-making and political
accountability.

✅ Link to Constitutionalism and the Rule of Law

 Administrative law is essential to the rule of law, requiring that:

o Public decisions must be rational, non-arbitrary, and authorised by
law.
 Section 33 of the Constitution provides:
o The right to lawful, reasonable, and procedurally fair administrative
action.
o The right to written reasons for decisions.
 Parliament enacted PAJA (2000) to give effect to these rights.
✅ Core Principles of Administrative Justice (3 Pillars) (LPR)

These are the cornerstones of administrative law:

1. Lawfulness: Power must be used within the legal limits provided.

2. Procedural Fairness: Fair process must be followed (e.g. right to a hearing).
3. Reasonableness: Decisions must be rational and justifiable.

✅ Scope: Who and What It Applies To

 Functional approach: Focuses on the nature of the power being exercised

—not who is exercising it.
 Applies to:
o Organs of state (e.g., departments, municipalities).
o Private bodies (e.g., companies) when performing public functions.

✅ Examples:

 Government departments delivering services (e.g., Home Affairs issuing ID

documents).
 Private entities contracted by the state to deliver public services (e.g.,
regulatory bodies).

✅ Judicial Review: Legal Pathways

Administrative actions may be challenged through five main avenues:

1. PAJA: Applies if the decision meets the definition of administrative action.

2. Other legislation: E.g., Labour Relations Act for labour matters.
3. Direct constitutional review: Under Section 33, if PAJA is unconstitutional
or inapplicable.
4. Legality principle: Applies to executive decisions outside PAJA’s scope.
5. Common law: Used where actions don’t qualify under PAJA but still impact
rights (e.g., private disciplinary action).

2. Define ‘Public Administration’

Public administration is the executive arm of the state responsible for

implementing legislation and policy. It is more specific than "government" and
focuses on action rather than decision-making.

✳️Key Characteristics of Public Administration:

✅ Primary Role

 Focuses on the execution of laws and policies passed by the legislature and
formulated by the executive.
  Example: Department of Health rolls out vaccination programs based on laws
and health policy.

✅ Constitutional Role

 Section 195 of the Constitution outlines principles for public administration:

o Ethical conduct
o Efficient use of resources
o Transparency and accountability
o Public participation and responsiveness

✅ Scope and Diversity

 Public administration includes a wide variety of state institutions and bodies:

o National departments (e.g., Department of Justice)
o Provincial departments
o Municipal administrations
o State-owned enterprises (e.g., Eskom)
o Chapter 9 institutions (e.g., Public Protector)

✅ Not a Technical Legal Term

 'Administration' refers to a broad and flexible category, not precisely defined

in law.
 Includes both central and decentralised institutions, performing a variety of
public tasks.

✅ Civil Service

 The civil service is a subset of public administration.

 It operates under national legislation and is responsible for implementing
government policy loyally and neutrally.
 Overseen by the Public Service Commission (established in Chapter 10 of
the Constitution).

🔑 Summary Table:

Topic Key Points

Administrative Governs public power, ensures lawful, fair, and rational
Law decision-making. Based on Section 33 and PAJA.
Key Pillars Lawfulness, Procedural Fairness, Reasonableness
Applies to all who exercise public power (including private
Scope
bodies when performing public functions).
Via PAJA, other legislation, Constitution, legality, or common
Judicial Review
law.
Public Executes law/policy. Includes departments, SOEs,
Administration municipalities. Governed by Section 195 values.
Technical implementation unit, under Public Service
Civil Service
Commission oversight.
3. Organs of the Government that Form Part of the Public Administration (with
Case Law)

✅ Definition:

Public administration includes all organs and functionaries within the executive
branch of government that are responsible for the implementation of laws and
policies, rather than their formulation or initiation.

It excludes high-level executive structures like the President, Cabinet, and

Premiers, focusing instead on operational and administrative institutions.

Organs that Form Part of the Public Administration:

Type of
Examples Notes
Organ/Institution
Government Dept. of Water &
Implement laws and policies
Departments Sanitation, Treasury
Public officials Execute government policy under
Public/Civil Service
across departments national legislation
Local Government
Municipalities Deliver services at the community level
Administrations
Included in public administration due to
Security Forces SAPS, SANDF
their state functions
Nominally private, but perform public
State-Owned
Eskom, Transnet functions; state is usually sole or
Companies (SOCs)
major shareholder
Cultural bodies, state Controlled by the state and perform
Fringe Organizations
boards delegated public tasks
Independent institutions performing
Public Protector,
oversight; may qualify as "organs of
Chapter 9 Institutions Human Rights
state" per Section 239(b) of the
Commission
Constitution
Investigative or
Perform public functions (e.g., judicial
Commissions advisory
commissions of inquiry)
commissions

⚖️Functional Approach to Identifying Public Administration:

 Focuses on the function performed, not just the identity of the body.
  If the function is public in nature, administrative law applies—even to private
entities.

📚 Relevant Case Law:

✅ President of the RSA v SARFU

 Key Principle: What matters is not the functionary but the function.
 Held: Administrative action is determined by the nature of the power
exercised (implementation of legislation = administrative).

✅ AAA Investments (Pty) Ltd v Micro Finance Regulatory Council

 A private company was held to be exercising public power by regulating

micro-lenders.
 It became an organ of state for the purpose of accountability under the Bill of
Rights.

✅ Umfolozi Transport v Minister van Vervoer

 Awarding a state tender is administrative action as it involves spending

public funds in the public interest.

✅ Transnet Ltd v Goodman Brothers (Pty) Ltd

 Transnet's tender process was found to be public in nature, despite being a

commercial entity.

✅ AMCU v Chamber of Mines

 Extending collective agreements to non-parties was found to be

administrative action with public impact.

✅ Ndoro v SAFA

 SAFA, though a private association, was found to exercise public power in

overseeing soccer—a matter of national importance.

4. Overview of the Development of Administrative Law in South Africa

📍 A. Pre-Democratic Era (Before 1994)

❗ Key Features:

 Based on common law, heavily influenced by English legal traditions.

 Operated under parliamentary supremacy: Courts could not declare
legislation unconstitutional.
  Administrative law was one of the few checks on state power—especially
under apartheid.
 Judicial review was limited, formalistic, and often ineffective.

🧱 Weaknesses of the System:

 Classification of Functions: Courts used rigid categories to determine if

actions were reviewable.
 No guaranteed rights: No right to reasons, and reasonableness was not a
ground for review.
 Discretionary powers (especially in apartheid policy enforcement) were often
immune from review.
 Judges prioritized state needs over individual rights, which stunted
development.

📍 B. Post-1994 Democratic Era – Constitutional Transformation

📖 Foundational Shift:

 The 1996 Constitution made administrative justice a fundamental right:

o Section 33: Everyone has the right to lawful, reasonable, and
procedurally fair administrative action.
o Right to written reasons for administrative decisions.

🧱 Institutional Impact:

✅ PAJA (Promotion of Administrative Justice Act, 2000)

 Enacted to give effect to Section 33.

 Forms the backbone of administrative law.
 Applies to all organs of state and private entities performing public
functions.
 Provides a clear definition of “administrative action”, which acts as a
gatekeeper for when the Act applies.

🔑 Key Constitutional Developments:

Principle Pre-1994 Post-1994/Constitutional Era

Narrow (linked to Now constitutional and broad,
Lawfulness
jurisdiction only) includes mistake of fact
Procedural
Limited natural justice Codified in PAJA (Sections 3 & 4)
Fairness
Now explicit in Section 33 & PAJA 6(2)
Reasonableness Not a review ground
(h)
Right to Reasons Not required Now a constitutional right
Judicial Review Common law only Now includes 5 avenues (see below)
Approach Institutional Now functional
⚖️Five Avenues of Judicial Review:

1. Review under PAJA: When action qualifies as administrative under the Act.
2. Review under Specific Statutes: e.g., Labour Relations Act.
3. Review under Section 33: If PAJA is invalid or inapplicable.
4. Review under Principle of Legality: For executive actions not covered by
PAJA (e.g., presidential pardons).
5. Review under Common Law: Still used where private entities exercise
coercive power without fitting into PAJA.

📝 Case: Gijima — Clarified that state entities must use legality review, not PAJA,
when challenging their own decisions.

🔄 Dual Nature of Modern Administrative Law:

 Control of Power: Red light theory—review and restriction of power.

 Facilitation of Governance: Green light theory—supporting good and
effective public service delivery.

⚖️Continued Role of Common Law:

 The Constitution does not abolish common law.

 Section 39(3): Existing rights under common law continue to exist unless
inconsistent with the Bill of Rights.
 Common law principles now subsume into the constitutional framework,
guiding the interpretation of PAJA and Section 33.

✅ Summary Table:

Review
Era Legal Basis Rights Guaranteed Major Shifts
Mechanism
Common law
Pre- under Formalistic judicial None (no right to Limited power to
1994 parliamentary review reasons or fairness) courts
supremacy
Constitutional and Shift to culture of
Lawfulness, fairness,
Post- Constitution & statutory judicial justification,
reasonableness,
1994 PAJA review (5 functional
right to reasons
avenues) approach

5. Sections in the Constitution, 1996 Most Significant to Administrative Law

⚖️Section 33 – Just Administrative Action

 Core of administrative law in South Africa.

 Guarantees lawful, reasonable, and procedurally fair administrative action.
 Grants the right to written reasons when rights are adversely affected.
  Mandates PAJA (Promotion of Administrative Justice Act 3 of 2000) to
give effect to this right.

🏛 Section 1 – Founding Provisions

 Enshrines Constitutional supremacy and the rule of law.

 These underpin the principle of legality, allowing courts to review public
power beyond PAJA.

🏢 Section 195 – Basic Values Governing Public Administration

 Applies to all spheres of government and public entities.

 Requires:
o Ethical, fair, and effective service delivery.
o Accountability and transparency.
o Participation of the public in policy-making.

⚖️Section 34 – Access to Courts

 Guarantees the right to a fair public hearing before a court or tribunal.

 Works with Section 33 to support judicial review of administrative actions.

📜 Section 8 – Application of the Bill of Rights

 Ensures the Bill of Rights applies to all law and all branches of state.
 Means administrative conduct is bound by Section 33 and the Constitution.

📘 Section 2 – Supremacy of the Constitution

 The Constitution is the highest law.

 Any law or conduct inconsistent with it is invalid—ensuring administrative
conduct complies with constitutional norms.

🛡 Chapter 9 Institutions (Sections 181–194)

 Create independent bodies like the:

o Public Protector (Section 182) – investigates improper conduct in
state affairs.
o Auditor-General (Section 188) – audits government financial
management.

🏛 Chapter 10 – Public Administration (Sections 195–197)

 Further governs how public service is to be conducted.

 Establishes the Public Service Commission (Section 196) to promote good
administration.

6. Comparison Between Administrative Law and Constitutional Law

 Feature Constitutional Law Administrative Law
The structure and powers The exercise of public power by the
Main Focus
of government. administration.
The “state at rest” –
The “state in motion” – focuses on
Metaphor focuses on design and
how policies are implemented and
(Holland) boundaries of government
decisions made.
institutions.
Reviews legislation and
Reviews administrative actions for
Scope of non-administrative
lawfulness, reasonableness, and
Review executive actions for
fairness (grounds of review).
constitutionality.
Based directly on the
Legal Based on Section 33, the PAJA, and
Constitution (esp. Sections
Foundation common law.
1, 2, 8).
Separation of powers, Administrative justice, procedural
Key Concepts constitutional supremacy, fairness, reasonableness,
rule of law, human rights. lawfulness, and accountability.
Became the supreme Developed from common law into a
Evolution in
source of law in 1994 with rights-based system after 1994 via
SA
the new constitutional order. Section 33 and PAJA.
Applies only when “administrative
Broad application – applies
Gatekeeping action” is present. If not, courts may
to all government action and
Doctrine still intervene using principle of
law.
legality from constitutional law.
Administrative law is a subset of
Constitutional law is the
Relation to constitutional law that ensures
foundation of
Each Other executive power is exercised fairly and
administrative law.
lawfully.

7. The Current State of Administrative Law and Its Challenges in South Africa

✅ Current State

 Constitutional foundation: Post-1994, administrative law shifted from

common law to a constitutional right—Section 33 of the Constitution
guarantees just administrative action (lawful, reasonable, procedurally fair).
 PAJA (Promotion of Administrative Justice Act 3 of 2000): Enacted to
give effect to s33 and forms the core of administrative law.
 Purpose: Balances:
o Control over administrative action (to protect rights),
o Empowerment of effective, fair, and responsive administration.
 Judicial Review:
o Now rooted in constitutional supremacy (ss 1(c), 33, 195), not only
the common-law ultra vires doctrine.
o PAJA governs most administrative action; legality review covers
executive actions outside PAJA.
⚖️Key Developments

 Public procurement (e.g., tenders) is a major area of administrative litigation.

 Legality review is expanding—reviewing state conduct outside PAJA using
the rule of law (s1(c)).
 Socio-economic rights are often enforced through failures in administrative
justice.
 Rich jurisprudence developed by the courts since 2000.

⚠️Key Challenges

1. Complex definition of "administrative action" (PAJA):

o Too narrow or unclear.
o Focuses litigation on form over substance.
2. Overuse of legality review:
o Easier route than PAJA—leads to inconsistency (Gijima case: state
self-review via legality).
3. Lack of clarity on judicial deference:
o Courts are inconsistent in respecting the role and expertise of
administrative bodies.
4. Over-reliance on judicial review:
o Alternatives like internal appeals, ombudsmen, or mediation are
underdeveloped.
o PAJA’s time limits and internal remedy rules hinder access to justice.

8. Differences Between Administrative Law, Administrative Authorities, and

Administrative Power

Concept Definition Examples / Notes

A body of law regulating
- Based on Section 33, PAJA,
how public powers are
Administrative common law, and case law. -
exercised. It empowers
Law Ensures accountability, fairness,
and limits administrative
lawfulness, reasonableness.
action.
- Includes: Departments (e.g., Health),
Public bodies or officials
Administrative SOEs (e.g., Eskom), Public Protector.
that implement legislation
Authorities - May perform functions governed by
and policy.
both public and private law.
The legal source or - Must be authorised by law
Administrative authority to perform a (Constitution, legislation,
Power function or take common/customary law, contracts). -
administrative action. May be mandatory or discretionary.

✅ Additional Clarifications:

 Administrative law applies to any person/body performing a public

function, even if private in nature.
  Administrative authorities are not only government—some private bodies
exercising public functions are also bound.
 Administrative power must have a clear legal empowering provision—
otherwise, the action is unlawful.

9. Sources of Administrative Law and Administrative Power

✅ Distinction

 Administrative law: Provides the legal framework that regulates

administrative actions—what administrators may or may not do and how
they must do it.
 Administrative power: Refers to the legal authority that permits a public
official or body to take action—where the power comes from.

🔹 Sources of Administrative Law

These are the legal foundations from which administrative law principles are
derived.

1. The Constitution

 Primary source of administrative law.

 Section 33: Guarantees the right to just administrative action (lawful,
reasonable, procedurally fair).
 Section 1(c): Upholds the rule of law.
 Section 195: Sets out the basic values and principles for public
administration.
 All other sources must be interpreted consistently with the Constitution.

2. Legislation

 PAJA (Promotion of Administrative Justice Act 3 of 2000): Implements

s33 and is central to administrative law.
o Sections 3–5: Procedural fairness and the right to reasons.
o Section 6: Grounds for judicial review.
o Section 1(i): Defines “administrative action.”
 Other Legislation:
o Original (Acts of Parliament).
o Delegated (regulations, rules, notices by authorities).
o Particular Administrative Law: Applies to specialised areas (e.g.,
environmental, tax, procurement law).

3. Common Law

 Pre-1994 system based on ultra vires doctrine and natural justice (e.g.,
audi alteram partem).
  Still relevant today: it fills in gaps and is developed in line with the
Constitution.

4. Case Law (Judicial Decisions)

 Interprets the Constitution, PAJA, and common law.

 Courts clarify concepts like "administrative action" and grounds of review.
 Contributes to a growing jurisprudence in administrative justice.

📌 Hierarchy of Sources

1. Constitution
2. Legislation (including PAJA)
3. Common law
4. Case law (interprets all of the above)

🔹 Sources of Administrative Power

These are the legal authorisations (empowering provisions) that allow officials or
bodies to act.

Rule of Law: No public power may be exercised without lawful authority.

1. The Constitution

 Sometimes directly authorises actions.

 Example: Section 84(2) gives the President powers as Head of State.

2. Legislation

 Original Legislation: Acts passed by Parliament or councils (e.g., Education

Act).
 Delegated Legislation: Created under an Act (e.g., regulations, rules,
directives).
 Most common source of administrative authority.

3. Common Law

 Where no legislation exists, officials may:

o Exercise contractual powers.
o Act in ways that natural persons can, unless restricted by law.

4. Customary Law

 Recognised under PAJA as a valid source.

 Traditional leaders exercise administrative powers over communities.

5. Agreements, Instruments, and Other Documents

 PAJA includes:
 o Contracts between public and private entities,
o Tender invitations, manuals, policy documents, and guidelines.
 These can serve as empowering provisions when they guide administrative
decision-making.

📌 Mandatory vs Discretionary Powers

 Mandatory: "Must" or "shall"—a duty to act.

 Discretionary: "May"—a power to act (choice).

✅ Summary

Administrative Law Administrative Power

Framework of rules for controlling public Source of legal authority allowing an
administration. administrator to act.
Comes from Constitution, PAJA, Comes from Constitution, legislation,
legislation, common law, courts. common law, etc.
Focuses on how power is exercised (e.g., Focuses on where the power comes from
fairly, lawfully). (empowering provision).
Hierarchical: Constitution > Legislation > Flexible sources: Constitution, laws,
Common law > Case law. agreements, policies.

Learning Unit 2

Learning Objectives:

🔹 1. Meaning of ‘Administrative Action’ Before the 1996 Constitution

📌 Context:

 Prior to 1994, South Africa was governed by common law and the principle
of parliamentary sovereignty.
 There was no constitutional supremacy and no Bill of Rights to protect
individuals against government power.
 Judicial review was available, but based on common law, not on
constitutional principles.

📌 Focus of Judicial Review:

 Courts concentrated on:

o Who performed the function (e.g., a government body or official).
o What the nature of the function was (legislative, judicial, quasi-
judicial, or administrative).

📌 Types of Administrative Functions:

1. Pure Administrative Action

o Day-to-day implementation of laws (e.g., issuing licenses).
o Usually not reviewable, unless decisions were irrational or unlawful.
2. Legislative Administrative Action
o Involves making subordinate rules (e.g., regulations under a statute).
o Subject to reasonableness, but not bound by natural justice.
3. Judicial or Quasi-Judicial Administrative Action
o Involves adjudicative decision-making (e.g., disciplinary hearings).
o Subject to natural justice principles:
 Audi alteram partem (hear the other side).
 Nemo judex in sua causa (no one should judge their own case).

📌 Judicial Review Before 1994:

 Based on inherent common law powers of the courts.

 No constitutional grounds for review.

📌 Post-1994 Developments:

 The 1996 Constitution introduced constitutional supremacy.

 The Promotion of Administrative Justice Act (PAJA) now governs
administrative action.
 Focus shifted to fairness, reasonableness, and lawfulness in decision-
making.

🔹 2. Distinguishing Executive from Administrative Action

📌 Key Definitions:
 Concept Explanation
High-level policy-making by political officials (President,
Executive Action
Ministers).
Administrative Implementation of legislation and policies by public
Action administrators.

 Executive action is reviewed under the principle of legality.

 Administrative action is reviewed under PAJA (constitutional right to just
administrative action).

📚 Key Case Law

*1. Fedsure Life Assurance v Greater Johannesburg TMC (1999)

 Issue: Was the city council's budgeting decision administrative?

 Held: No. It was a legislative/political function.
 Reason: Elected bodies are accountable politically, not judicially.

*2. Ed-U-College v Permanent Secretary, Education (2001)

 Issue: Was the decision about subsidies administrative or executive?

 Held:
o Policy-making (allocating budgets): Executive action.
o Applying rules to cases: Administrative action.
 Rule: The act of implementing policy = administrative; creating policy =
executive.

*3. President of RSA v SARFU (2000)

 Issue: Was the President’s appointment of a commission administrative?

 Held: No. It was an executive power (Constitution s 84(2)(f)).
 Rule: Presidential powers are executive, not administrative, but still
reviewable for legality.

🔍 Functional vs. Institutional Approach

 Old Approach: Focused on the institution (who performed the action).

 New (Functional) Approach: Focuses on the nature of the function itself.

Approach Focus
Institutional Who is acting
Functional What is being done (the function)

 A functional approach allows for more accurate classification and fairer

judicial scrutiny.

📊 Summary Table: Executive vs Administrative Action

 Feature Executive Action Administrative Action
Policy formulation and high-
Nature Implementation of laws and policies
level decisions
Political officeholders Public administrators (government
Actors
(President, Ministers) departments)
Review Principle of legality (rationality PAJA (fairness, lawfulness,
Standard test) reasonableness)
Budget decisions, presidential Granting permits, applying subsidy
Examples
appointments rules

3. SARFU Case – Factors for Determining Administrative Action

The SARFU case (President of the RSA v SARFU 2000 (1) SA 1 (CC)) laid the
groundwork for determining whether an action is administrative in nature, which is
vital to deciding if PAJA applies.

✳️Key principle: “What matters is not so much the functionary as the function.”

✅ SARFU Factors:

The Constitutional Court outlined contextual factors to distinguish administrative

from legislative or executive actions:

Factor Explanation
1. Source of the Whether it comes from the Constitution, legislation, or
power common law. Not decisive but relevant.
Is the power rule-making or operational? Policy-formulating
2. Nature of the
powers = executive/legislative; rule-applying powers =
power
administrative.
What is the power directed at (e.g., appointment,
3. Subject-matter
procurement, delivery of services)?
4. Exercise of a Is it a function performed in the public interest? Public nature
public duty often indicates administrative action.
Core distinction: Actions closer to policy (formulation) =
5. Policy vs.
executive/legislative. Actions closer to implementation =
Implementation
administrative.
6. Constitutional Consider whether it promotes the values of an efficient,
Values equitable and ethical public administration (Section 195).

🔍 Application in a Scenario: Health Minister Capping Non-Emergency

Procedures

Scenario
SARFU Factor Applied Implication
Element
Directive issued Source of power = likely National Suggests public and legal
 Scenario
SARFU Factor Applied Implication
Element
by Health
Health Act authority
Minister
Decision caps
Subject-matter = public healthcare Public duty – relevant for
services in
delivery admin law
hospitals
Policy formulation vs.
Minister Policy = executive (legality
implementation? Depends on
responding to review); Implementation =
whether directive is strategic
budget administrative (PAJA
(policy) or concrete
constraint applies)
(implementation).

📝 Conclusion: If directive implements detailed law, it’s administrative. If it’s a

broad policy decision, it’s executive, not administrative.

4. Legislative vs. Administrative Decisions (With Case Law)

✅ Distinction

Legislative Action Administrative Action

High-level policy-making, law-making, or Implementation or application of law or
budget-setting policy
Involves elected bodies like Parliament, Involves public officials or departments
municipal councils (bureaucracy)
Not governed by PAJA, but subject to Governed by PAJA and Section 33 of
legality review the Constitution
Judicial accountability via review of
Political accountability to the electorate
decisions

📚 Key Cases

✅ Fedsure v Greater Johannesburg 1999 (1) SA 374 (CC)

 Facts: City council imposed rates and taxes.

 Held: This was legislative action, as the council was exercising a
lawmaking power under the Constitution.
 ✅ Not administrative → not reviewable under PAJA, but must comply with
the principle of legality.

✅ Ed-U-College v MEC for Education 2001 (2) SA 1 (CC)

 Facts: Education MEC created a subsidy formula for private schools.

 Held:
o The overall budget allocation was legislative.
 o The formula creation and allocation of subsidies were
administrative → specific application of policy via statute.
 ✅ The latter actions were reviewable under PAJA.

✅ SARFU 2000 (1) SA 1 (CC)

 Facts: President appointed a commission of inquiry under s84(2)(f).

 Held: This was not administrative action. It was executive in nature.
 ✅ Still reviewable under legality, even though PAJA doesn’t apply.

5. Judicial vs. Administrative Decisions (with case law)

✅ Key Distinction:

The nature of the function, not the identity of the actor, determines whether a
decision is judicial or administrative.

📘 Judicial Decisions:

 Involve applying law to facts to resolve disputes.

 Made by courts or judicial officers in terms of section 166 of the
Constitution.
 Subject to appeal, not review under PAJA.
 Characterised by:
o Impartial adjudication
o Legal reasoning in a public forum
o Final and binding rulings on rights

🧑‍⚖️Case Law:

 Nel v Le Roux NO and Others:

o Summary sentencing is a judicial function.
 Pretoria Portland Cement v Competition Commission:
o Issuing a search warrant = judicial function.
 PAJA Section 1(i)(ee):
o Excludes judicial functions from “administrative action”.

🏛 Administrative Decisions:

 Concern implementing laws or policy, not interpreting law in disputes.

 Usually carried out by executive officials, departments, or public bodies.
 Reviewed under PAJA or principle of legality.
 Concern:
o Licensing
o Permits
 o Service delivery
o Regulatory decisions

📌 Functional Approach (SARFU Case):

The President of the RSA v SARFU (1999) established the "functional approach":
Focus is on the nature of the function, not the title or institution of the actor.
Even judges may perform administrative tasks (e.g. managing court rolls).

6. Public vs. Private Power by Public Entities

✅ Core Principle:

A public entity may act in either a public or private capacity.

The source of power, its purpose, and impact determine whether it is
administrative action.

⚖️Public Power:

 Arises from legislation or constitutional obligation

 Coercive, binding, and affects rights of the public
 Subject to administrative law, including PAJA

🧾 Private Power:

 Arises from contract or commercial law

 Based on voluntary relationships
 Subject to private law, not PAJA

📘 Key Case Law:

✅ AAA Investments v Micro Finance Regulatory Council:

 Private body exercised public power by regulating lenders on behalf of the

Minister.
 Public power because:
o Derived from statutory delegation
o Pursued a public regulatory function

✅ Cape Metro Council v Metro Inspection Services:

 Cancellation of contract:
o Based on statute → public power
o Based on contract → private power

✅ Joseph v City of Johannesburg:

  City terminated electricity to tenants without notice.
 Despite being contractual, it was administrative because:
o Fulfilled a constitutional service delivery duty
o Affected basic rights of residents

✅ Ndoro v SAFA:

 Sports bodies’ decisions = administrative action where:

o Rules are binding and coercive
o Regulate a public good (e.g., national football)

❌ Cronje v United Cricket Board:

 Held to be private power, no public duty involved.

🧠 Functional Indicators of Public Power:

Indicator Meaning
Source of Power Is it based in legislation or contract?
Impact on Public Does it bind or affect the general public?
Coercive Effect Are people compelled to comply?
Use of Public Funds Are taxpayer funds involved?
Public Duty Does the entity fulfil a constitutional/statutory obligation?
Monopoly/Regulation Is the power used to control public goods or services?

📝 Summary:

Distinction Public Power Private Power

Source Constitution/statute Contract/common law
Regulated by PAJA & legality Private law
Public interest & human
Accountability Commercial/legal norms
rights
Cape Metro Council (contractual
Case example Joseph v CoJ
grounds)

7. The Exercise of Public Powers by Bodies Not Part of the Public

Administration

In South African administrative law, public power is not confined to government

departments. Even private entities can fall under administrative law if they
exercise public power or perform public functions.

📘 Legal Basis
  Section 33 of the Constitution and the Promotion of Administrative
Justice Act (PAJA) extend the concept of administrative action to:

“An organ of state or a natural or juristic person exercising a public

power or performing a public function in terms of legislation.”

Thus, both organs of state and private actors can perform administrative action if
their function is public in nature.

🧭 Factors to Determine Public Power or Function

Courts consider a range of factors (not a single test):

1. Source of the power: Legislation vs contract (e.g. Cape Metropolitan

Council).
2. Nature of power: Coercive, binding, regulatory?
3. Impact on the public: Is it wide-reaching and public-facing?
4. Public interest/duty: Does the function serve a broader public purpose?
5. Use of public funds: Is public money used?
6. Government control: Is the body subject to state oversight?
7. Monopolistic role: Does it have exclusive regulatory authority?
8. Substitution by government: Would the state have done it otherwise?

🔍 Key Cases

 🧑🏽‍⚖️AAA Investments v MFRC:

A private regulatory company (MFRC) exercised public power as it

operated under ministerial authority to regulate microfinance, serving a
public interest.

 🏙 Joseph v City of Johannesburg:

The termination of electricity without notice was administrative

action, as it affected residents’ public-law rights despite no contractual
relationship.

 ⚽ Sporting Bodies:
o Cronje: UCB’s action was private.
o Nyoka v Cricket SA, Ndoro v SAFA: Decisions by sports bodies were
administrative—they regulated access to a public good and had
coercive effects.
 🚍 Umfolozi Transport; Transnet v Goodman Bros:

Steps in state tenders were held to be administrative action, as they

involved spending public funds for public services.

8. Institutional vs Functional Approaches to Public Power

This distinction helps determine whether conduct qualifies as administrative action.

🏢 Institutional Approach

 Focuses on the identity of the actor.

 Traditionally, only decisions by state entities (like departments) were
considered reviewable.
 Pre-1994 common law emphasized the classification of bodies: “legislative,”
“judicial,” or “administrative.”

⚙️Functional Approach

 Focuses on the nature of the power or function, not the identity of the actor.
 Adopted in the constitutional era, especially through PAJA and case law.
 Core principle: “It is the function, not the functionary, that matters.”

⚖️Case Law Comparison

✅ SARFU case (President v South African Rugby Football Union)

 Issue: Was the President’s appointment of a commission administrative

action?
 Held: No. It was a policy-driven, executive act.
 Importance: Court applied a functional approach, clarifying that even the
President’s actions are not automatically administrative.

✅ AAA Investments case

 A private entity exercised public power delegated by the Minister.

 Decision was reviewable, proving that even private companies can be bound
by administrative law.

⚖️Public Protector & Auditor-General Cases

 Public Protector: Acts were not administrative due to watchdog role (SCA
ruling focused more on the institutional role).
 Auditor-General: Functions (auditing public accounts) were administrative
in nature—functional approach applied.

📜 PAJA and Constitution

 PAJA's definition reflects the functional approach:

Administrative action = decision by any person exercising a public

power or function under legislation.

 Constitution: Defines "organ of state" to include any institution performing a

public function.

🧠 Summary Table: Institutional vs Functional Approach

 Criteria Institutional Approach Functional Approach
Focus Identity of the actor Nature of the power or function
Old system Pre-1994 common law Post-1994 constitutional system
Flexibility Rigid Flexible and contextual
Example case Cronje v UCB SARFU, AAA Investments, Ndoro
PAJA alignment No Yes

9. Define extensively the meaning of administrative action in terms of PAJA

The Promotion of Administrative Justice Act (PAJA) 3 of 2000 gives effect to

Section 33 of the Constitution, which guarantees everyone the right to lawful,
reasonable, and procedurally fair administrative action, and to written reasons
for such actions. To enjoy these rights, the conduct in question must first qualify as
"administrative action" under PAJA.

Meaning and Role of Administrative Action

 The term administrative action is defined in Section 1(i) of PAJA. This

definition is complex, and courts have described it as:
o “Unwieldy”
o “Cumbersome”
o Serving “more to limit its meaning than explain it”
 The definition acts as a gatekeeping function:
o Only if an action qualifies as administrative action can a person
challenge it under PAJA.
o Likewise, administrators are only bound by PAJA’s requirements
(fairness, reasons, etc.) if their conduct qualifies as administrative
action.
 A statutory term like “administrative action” must be interpreted according to
its definition in PAJA unless that interpretation would cause absurdity or
injustice.

Constitution vs PAJA: Where to Start?

There are two judicial views:

1. Start with Section 33 of the Constitution – then use PAJA to clarify.

2. Start with PAJA’s definition – use Section 33 only if clarification is needed.
o The Constitutional Court prefers the second view.

Thus, administrative action = PAJA’s Section 1(i) definition, which must be

systematically analysed to determine if a decision qualifies.

10. Examine the seven elements contained within the definition of

administrative action
In Minister of Defence and Military Veterans v Motau and Others, the
Constitutional Court set out seven key elements of what qualifies as
administrative action under PAJA:

1. A decision (or failure to take a decision) of an administrative nature

 Must be final and decisive, not preliminary steps.

 Can include omissions (failures to act), but only when there is a legal duty
to act.
 “Administrative nature” relates to implementing policy, not creating it.
o Typical of bureaucratic functions, not executive or legislative
functions.
 Example case: Grey’s Marine Hout Bay v Minister of Public Works –
administrative action = applying policy in practice, not developing it.

2. By an organ of state or a natural/juristic person

 Not only government departments – private entities can also perform

administrative action.
 Focus is on the function, not the identity of the actor (called the functional
approach).
 PAJA refers to Section 239 of the Constitution to define "organ of state".
 Case: AAA Investments v Micro Finance Regulatory Council – private bodies
exercising public powers are bound by PAJA.

3. Exercising a public power or performing a public function

 This element is about what is being done:

o Does it serve the public interest?
o Does it regulate access to a public good or right?
 Courts ask whether the source of the power and the purpose of its
exercise serve the public.
 Example: AMCU v Chamber of Mines – regulating labour relations affects the
public and thus qualifies.

4. In terms of legislation, the Constitution, or an empowering provision

 The source of authority must be legal:

o For state organs: Constitution or legislation.
o For private entities: any empowering provision, which can include
contracts or customary law.
 Case: Allpay v SASSA – even tender documents can be empowering
provisions under PAJA.

5. That adversely affects rights

 Not just actually violated rights—the action must have the potential to
negatively affect rights.
  The court prefers a broad reading:
o Action must have the capacity to affect legal rights (Grey’s Marine).
 Rights include public-law rights, not just private rights.
 Case: Joseph v City of Johannesburg – even informal tenants had a right to
electricity services.

6. That has a direct, external legal effect

 The action must have a final and binding legal effect on someone outside
the administration.
 Internal communications or recommendations are usually excluded.
 However, an action with serious consequences may still qualify.
 Case: Oosthuizen’s Transport v MEC, Road Traffic Matters – even an
intermediate decision qualified due to its direct impact.

7. That does not fall under any listed exclusions in PAJA

 PAJA excludes nine categories of actions, even if they meet the other six
elements.
 These fall into two groups:

✅ Separation of powers exclusions (e.g., Presidential decisions, judicial

functions):

o Not reviewable under PAJA but may be challenged under the

principle of legality.

✅ Pragmatic exclusions:

o Examples: decisions to prosecute, or decisions under PAIA.

o These are excluded to avoid duplication of remedies.
 PAJA also excludes its own internal procedure choices, e.g., public
participation methods under Section 4(1).

Summary: Why the Seven Elements Matter

Together, these seven elements ensure that:

 Only actions with significant legal consequences,

 Taken in public power or interest,
 By actors exercising delegated authority,
 Are accountable under PAJA.

However, due to the complexity of this definition, courts sometimes prefer using the
“principle of legality” to ensure constitutional compliance, especially when an
action falls outside PAJA's scope but still needs judicial oversight.
11. Discuss the negative effects of having a narrow definition of administrative
action in terms of PAJA

Negative Effects

1. Endless Legal Disputes and Distraction from Justice

 The complexity causes frequent, prolonged disputes about whether

conduct qualifies as administrative action.
 These disputes distract courts from their core task: promoting substantive
compliance with administrative justice.
 This recalls the common-law “classification of functions” problem, which
prioritized formal categories over real justice outcomes.

2. Problematic Interpretation of “Adversely Affects Rights”

 A literal reading would mean only decisions that actually harm rights qualify.
 This contradicts Section 33(1) of the Constitution, which guarantees just
administrative action generally, without limiting it to adverse effects.
 Administrators would face a “logical conundrum”: needing to know if rights
will be harmed before making a decision to determine if PAJA applies.
 Courts have broadened this to mean decisions that have the capacity to
affect legal rights, including “public-law rights” (rights arising from
statutory or constitutional duties).
 The initial narrow wording complicated this interpretation and caused
uncertainty.

3. “Direct, External Legal Effect” Requirement Reinforces Finality

 This element excludes internal administrative conduct or preliminary

steps from PAJA’s scope.
 While meant to avoid piecemeal legal challenges, a strict application can
delay judicial scrutiny of important steps that already have serious
consequences.
 For example, a preliminary recommendation with serious impact was
recognized as administrative action, showing the tension between the
requirement and reality.

4. Specific Exclusions Narrow the Scope Further

 PAJA lists nine express exclusions, including:

o Separation of powers exclusions (e.g., judicial or presidential
functions).
o Pragmatic exclusions: actions excluded to avoid duplication or
inefficiency (e.g., prosecution decisions, procedural choices for public
participation).
 One key exclusion: Choices on public participation procedures (Section
4(1) PAJA) are not reviewable under PAJA, creating gaps in accountability
for procedural fairness.
  These exclusions reduce PAJA’s reach, sometimes leaving important
decisions unreviewed.

5. Fragmentation and Parallel Review Systems

 The difficulties in applying PAJA have led applicants and courts to prefer
principle of legality review to avoid PAJA’s complexities.
 This has caused fragmentation:
o Two parallel systems: one under PAJA and one under legality.
o This undermines the constitutional scheme of having PAJA as the
primary review mechanism.
 The State Information Technology Agency SOC Ltd v Gijima Holdings (Pty)
Ltd case reinforced this fragmentation by limiting PAJA review when state
organs review their own decisions, forcing legality review instead.
 This distinction based on who reviews the decision rather than its nature is
problematic.

6. Inhibits Development of Administrative Justice Alternatives

 PAJA’s formal and complex definition stifles growth of alternatives to court-

based review.
 Time limits (e.g., 180 days for review) and requirements to exhaust internal
remedies, linked to PAJA’s scope, can be unjust and restrictive.
 This strong conceptualism diverts focus from substantive justice
questions to procedural technicalities, echoing outdated formalism.

Summary

 PAJA’s narrow, complex definition of administrative action causes:

o Procedural confusion and disputes,
o Restricted access to justice for affected persons,
o Fragmentation of administrative law,
o Gaps in accountability for important administrative decisions,
o Stifled innovation in administrative justice mechanisms.
 While PAJA sought to give effect to the constitutional right to
administrative justice, its restrictive approach paradoxically limits the
realisation and effectiveness of that right.

Cases:

1. President of the Republic of South Africa and Others v South African Rugby
Football Union and Others 2000 (1) SA 1 (CC) (SARFU)
  Facts:
The President appointed a commission of inquiry into rugby administration
and declared the Commissions Act applicable. SARFU and others challenged
the constitutional validity of these notices. The High Court set them aside, but
the President appealed.
 Issue:
Whether the President’s appointment of the commission was “administrative
action” subject to review under Section 33 of the Constitution.
 Rule:
Presidential powers under Section 84(2), such as appointing commissions,
are executive/political functions, not administrative action. Such acts are
subject to the principle of legality but not the full procedural fairness
requirements of Section 33 or PAJA.
 Application:
The Court applied the functional approach and held the appointment was an
executive function, not administrative action.
 Conclusion:
The President’s appointment was not administrative action but executive
conduct subject to legality review only; the High Court’s setting aside was
overturned.

2. Fedsure Life Assurance Ltd and Others v Greater Johannesburg

Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC)

 Facts:
The Greater Johannesburg Council increased municipal rates via resolutions.
The matter raised constitutional issues about whether these were
administrative actions.
 Issue:
Whether municipal council resolutions levying rates are “administrative action”
reviewable under the Constitution.
 Rule:
Acts of a public authority exercising original legislative power (e.g., passing
bylaws or levying rates) are not administrative action but subject to the
principle of legality.
 Application:
The Court found the resolutions were original legislative acts, not
administrative action.
 Conclusion:
The council’s resolutions were not administrative action and not subject to
PAJA procedural fairness review.

3. Nel v Le Roux NO and Others 1996 (3) SA 562 (CC)

 Facts:
The case concerned the constitutionality of Section 205 of the Criminal
 Procedure Act, allowing judicial officers to compel attendance for
examinations.
 Issue:
Whether the judicial officer’s function under Section 205 constitutes
administrative action.
 Rule:
Judicial functions are excluded from the definition of administrative action
under PAJA.
 Application:
The compelled attendance is a judicial function, tied to the court’s
investigative powers.
 Conclusion:
The act was a judicial function, not administrative action; the provision was
constitutional and outside PAJA’s scope.

4. Permanent Secretary of the Department of Education of the Eastern Cape

Province and Another v Ed-U-College (PE) Inc 2001 (2) SA 1 (CC)

 Facts:
The Department of Education allocated subsidies to private schools. The
question arose whether this constituted administrative action.
 Issue:
Does the determination and allocation of subsidies qualify as administrative
action under Section 33?
 Rule:
The nature of the power exercised is decisive. Policy formulation within a
legislative framework can be administrative action.
 Application:
The subsidy determination was policy implementation within a legislative
framework, affecting specific rights.
 Conclusion:
The subsidy allocation was administrative action subject to administrative
justice rights.

5. AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another
2007 (1) SA 343 (CC)

 Facts:
AAA Investments challenged rules made by the Micro Finance Regulatory
Council (MFRC), a private entity tasked with regulation under a ministerial
exemption.
 Issue:
Whether rules made by a private company exercising public power constitute
administrative action.
  Rule:
The functional approach applies: private entities exercising public power or
functions are subject to administrative law.
 Application:
MFRC’s rules derived from Ministerial control and statutory empowerment,
making it a public function.
 Conclusion:
The MFRC’s rules constituted administrative action, even though made by a
private body.

Learning Unit 3

Learning Objectives:

1. Controls and Checks on Administrative Power in South Africa

1. Dual Nature of Administrative Law

 Restrictive role ("Red light"): Limits and controls public power to prevent
abuse.
 Enabling role ("Green light"): Facilitates lawful and efficient exercise of
administrative functions.

This means administrative law both checks administrative power and empowers
public authorities to act within legal bounds.

2. Major Mechanisms of Control and Checks

A. Judicial Regulation (Judicial Review)

 Purpose: Ensures administrative decisions comply with law and fair

procedure.
 Focus: Legality and procedural fairness ("how" decisions are made), not
merits or correctness ("what" decision is).
 Difference from Appeal: Review checks process and lawfulness, not
substituting decision on its merits.
 Grounds for Review: Codified in PAJA s6(2) – includes illegality, irrationality,
procedural unfairness, bias, failure to follow prescribed procedures.
 Avenues for Review:
 o PAJA Review: Applies if conduct is "administrative action" under
PAJA.
o Statutory Reviews: Some laws provide specific review routes (e.g.,
CCMA decisions).
o Legality Principle Review: For public power not qualifying as
administrative action (e.g., executive/political acts).
o Constitutional Review (Section 33): In limited cases, courts may
review PAJA or develop law under constitutional mandate.
o Private Actions (Common Law): When private bodies exercise
coercive power affecting rights.
 Judicial Deference: Courts respect expertise and policy discretion of
administrators, intervening cautiously.
 Remedies:
o Set aside unlawful decisions.
o Remit decisions for reconsideration.
o Substitute or vary decisions (rare).
o Grant compensation for harm.
o Issue declaratory orders or interdicts (to prevent or compel action).

B. Non-Judicial Regulation

1. Legislative Regulation and Oversight

 Role of Legislature:
o Creates laws defining and limiting administrative powers.
o Provides procedures and standards for administrative actions.
 Parliamentary Oversight:
o Holds Ministers accountable for their departments.
o Parliamentary committees review administration and budgets.
o Controls finances through budget approval.
 Prohibition of Ouster Clauses:
o Legislature cannot exclude judicial review arbitrarily; courts can still
review administrative power.
 Guidance on Discretion:
o Laws often require administrators to exercise discretion guided by clear
criteria.

2. Internal Controls and Remedies

 Administrative bodies often have internal appeal or complaint

mechanisms.
 These provide quick, cost-effective correction of mistakes or
maladministration.
 PAJA generally requires exhausting these remedies before judicial review.
 Benefit from administrators’ technical expertise and contextual knowledge.

3. Specialized Oversight Bodies (Chapter 9 Institutions)

 Public Protector:
 o Investigates maladministration and abuse.
o Issues binding remedial actions.
o Actions can be reviewed judicially but generally through legality review.
 Auditor-General:
o Audits government financial management.
o Can issue binding remedial orders for financial irregularities.
 Public Service Commission:
o Oversees public service conduct and administration.
o Advises and issues guidelines to promote administrative justice.
 Human Rights Commission:
o Protects rights, indirectly influencing administrative justice.

4. Alternative Dispute Resolution (ADR)

 Mechanisms like mediation and negotiation used to resolve administrative

disputes.
 Used by some bodies (e.g., Public Protector Act) to settle matters outside
courts.
 Complements judicial review but courts remain primary oversight.

3. Fundamental Principles Underpinning Controls

 Constitutional Supremacy: All public power must comply with the

Constitution.
 Rule of Law: Requires legality, rationality, and non-arbitrariness in all
administrative acts.
 Separation of Powers: Legislature, executive, and judiciary have distinct
roles with checks and balances.
 Administrative Justice (Section 33):
o Right to lawful, reasonable, and procedurally fair administrative action.
o Right to reasons for administrative decisions.
 Lawfulness: All administrative action must be authorized by law and within
prescribed limits.
 Procedural Fairness:
o Right to be heard (audi alteram partem).
o Freedom from bias (nemo judex in sua causa).
 Reasonableness: Decisions must be rational and justifiable on the facts and
law, without improper discretion.

4. Role Players in Regulation of Administrative Action

Role Player Function/Role Mechanism

Judicial review of Review under PAJA,
Courts
administrative actions Legality, Constitution
Enacts laws regulating
Lawmaking, budget
Legislature/Parliament administrative power;
control, committees
oversight
Executive/Administrators Exercise administrative Internal remedies,
powers; internal controls following legal
 Role Player Function/Role Mechanism
mandates
Public Protector Investigates Independent
maladministration; binding constitutional
remedial action institution
Auditor-General Financial oversight; binding
Independent audit
remedial orders for
institution
irregularities
Monitors personnel practices Investigations,
Public Service Commission
and public administration guidelines, advice
Alternative Dispute Facilitate resolution without Mediation, negotiation,
Resolution Bodies court intervention conciliation

2. Application of Relevant Acts and Legislative Provisions to Controls on

Administrative Action

Administrative power in South Africa is regulated by an interconnected system of

controls supported by specific legislation, mainly derived from the Constitution and
statutes designed to give effect to constitutional principles.

1. Judicial Regulation (Judicial Review)

Constitutional Foundation

 Section 33 of the Constitution

o Guarantees everyone the right to administrative action that is lawful,
reasonable, and procedurally fair.
o Guarantees the right to written reasons for administrative decisions.
 Section 1(c) of the Constitution (Rule of Law / Principle of Legality)
o All public power must be lawful, rational, and authorised by law,
including executive actions that do not qualify as "administrative action"
under PAJA.

Key Legislation: Promotion of Administrative Justice Act 3 of 2000 (PAJA)

 Section 1(i): Definition of "Administrative Action"

o Applies to decisions or failures by organs of state or persons exercising
public power under law.
 Section 6(2): Grounds for Judicial Review
o Codifies legal grounds for review, e.g.,
 Illegality (acting without power, bad faith, ulterior purpose)
 Procedural unfairness (bias, failure to hear)
 Unreasonableness (no reasonable person could make the
decision)
 Section 7(2): Exhaustion of Internal Remedies
 o Courts generally require that any internal remedies (like internal
appeals) be exhausted before judicial review.
 Section 8: Remedies for Unlawful Administrative Action
o Includes setting aside the decision, remitting it for reconsideration,
substituting or varying the decision (rare), granting compensation,
declaratory orders, and interdicts (prohibitory, mandatory, structural).
 Section 9A: Jurisdiction
o Allows magistrates designated and trained to hear review cases,
expanding access to administrative justice.

2. Non-Judicial Regulation

A. Legislative Regulation and Oversight

 Constitutional Oversight:
o Section 55(2) of the Constitution (National Assembly) and Section
114 (Provincial Legislatures)
 Mandate parliamentary oversight of executive organs.
 Enable accountability mechanisms for Ministers and their
departments.
o Section 36 (Limitations Clause):
 Any law attempting to exclude judicial review ("ouster clauses")
must meet constitutional justification criteria.
 Legislative Empowering Provisions:
o Laws that define and limit administrative powers (including procedure
and scope) provide the legal foundation for administration.
o Guidance on discretion: Following Dawood v Minister of Home Affairs,
legislatures must provide guidelines to ensure discretion is exercised
lawfully.

B. Internal Controls and Remedies Within Administration

 Promotion of Administrative Justice Act Section 7(2):

o Encourages exhaustion of internal administrative remedies before
approaching courts.
 Specific Acts Providing Internal Remedies:
o Treasury Regulations under the Public Finance Management Act 1
of 1999
 Provide internal controls over financial management in public
administration.
o Financial Services Board Act 97 of 1990
 Provides for regulatory oversight and internal remedies in
financial services.
o Genetically Modified Organisms Act 15 of 1997
 Provides for appeals to an expert appeal board rather than
courts, showing specialized internal administrative remedies.

C. Specialized Oversight Bodies (Chapter 9 Institutions)

 The Public Protector

 o Section 182(1)(a)-(c) of the Constitution:
 Empowered to investigate improper conduct in state
affairs/public administration, report findings, and take binding
remedial action.
o Public Protector Act 23 of 1994:
 Elaborates powers, processes, and binding nature of remedial
actions.
o Courts can review the Public Protector’s actions under the principle of
legality, not PAJA.
 The Auditor-General
o Section 188 of the Constitution:
 Responsible for auditing and reporting on government finances
and compliance.
o Public Audit Act 25 of 2004:
 Defines audit scope, including compliance and performance
audits.
o Public Audit Amendment Act of 2018:
 Grants binding remedial authority over material irregularities.
o Findings may be challenged judicially if considered administrative
action or under legality review.
 The Public Service Commission
o Section 196 of the Constitution (Chapter 10):
 Oversees public service administration and personnel practices.
 Provides guidelines, investigations, and advice to promote good
administration and lawful conduct.

D. Alternative Dispute Resolution (ADR)

 Public Protector Act Section 6(4):

o Allows the Public Protector to use conciliation, mediation, or
negotiation.
 ADR processes are encouraged as complementary to judicial review, offering
efficient dispute resolution without court litigation.

Summary Table of Relevant Acts and Provisions

Relevant Legislation and

Control Type Key Features / Role
Sections
Guarantees lawful, reasonable,
- Constitution s33 & s1(c)
Judicial Review procedurally fair admin action;
(Legality)
courts enforce these standards
Grounds for review, remedies,
- PAJA 3 of 2000 (ss 1(i), 6(2),
exhaustion of internal remedies,
7(2), 8, 9A)
jurisdiction
Parliamentary oversight,
Legislative
- Constitution ss 55(2), 114, 36 prohibition of unjust ouster
Regulation
clauses, guidance on discretion
 Relevant Legislation and
Control Type Key Features / Role
Sections
Internal Requires exhaustion of internal
- PAJA s7(2)
Remedies administrative remedies
- Treasury Regulations (PFMA 1 Financial management internal
of 1999) controls
- Financial Services Board Act Financial sector internal
97 of 1990 oversight
Specialized appeals within
- GMO Act 15 of 1997
admin system
- Constitution s182 (Public
Specialized Protector), s188 (Auditor- Oversight, investigations,
Oversight Bodies General), s196 (Public Service binding remedial actions
Commission)
- Public Protector Act 23 of Investigation and remedial
1994 powers
- Public Audit Act 25 of 2004 & Auditing and binding remedial
Amendments orders
Alternative
Use of mediation, conciliation as
Dispute - Public Protector Act s6(4)
alternative dispute resolution
Resolution (ADR)

3. The Role of Alternative Dispute Resolution (ADR) in Regulating

Administrative Action

Why ADR Matters in Administrative Law

Administrative justice is not limited to courts but embraces multiple mechanisms to

ensure fairness, accountability, participation, and efficiency in public
administration. ADR processes support this broader vision by:

 Promoting a participatory, responsive, accountable, affordable, and

efficient system of administrative decision-making.
 Enabling administrative bodies to self-correct mistakes before formal
litigation.
 Addressing disputes in a less formal, quicker, and cost-effective manner
than courts.
 Offering specialized expertise suited to technical administrative issues
courts may be less equipped to handle.
 Complementing judicial review as part of a “green light” theory of
administrative law that encourages facilitation and effective governance
alongside control.

Statutory and Legal Support for ADR in Administrative Contexts

 1. Public Protector Act 23 of 1994
o Section 6(4) empowers the Public Protector to use mediation,
conciliation, or negotiation to resolve disputes or rectify
administrative wrongs.
o Many complaints are resolved through these ADR methods without
proceeding to formal investigation or litigation.
2. Local Government: Municipal Finance Management Act & Supply Chain
Management Regulations
o Public tender documents must include clauses requiring disputes to be
resolved by mutual consultation or mediation first, resorting to
courts only if these fail.
o Since public tender decisions are administrative actions, ADR is
expressly integrated into this administrative process.
3. Tax Administration Act
o Provides for alternative dispute resolution procedures between
SARS and taxpayers through agreed-upon rules.
o This allows efficient resolution of tax disputes, which often constitute
administrative actions.

Benefits of ADR in Administrative Law

 Informality and Flexibility

o Less rigid procedures than courts, fostering openness and cooperation.
 Speed and Cost-Effectiveness
o Generally quicker resolutions and lower costs for parties and
administration.
 Specialised and Technical Expertise
o ADR practitioners or bodies may have deeper knowledge of
administrative or technical issues.
 Encourages Self-Correction and Accountability
o Administration can correct errors internally, reducing court backlog.
 Complementary to Judicial Review
o ADR does not replace courts but offers additional, sometimes
preferable, routes for resolving disputes.

Judicial Skepticism and Limitations: The ISO Leisure Judgment

 In Airports Company South Africa Ltd and Another v ISO Leisure OR

Tambo (Pty) Ltd, the court ruled:
o An arbitrator could not adjudicate disputes over administrative
decisions related to public tenders.
o Section 7(4) of PAJA requires judicial review claims to be brought
only in High or Constitutional Courts.
o Allowing arbitration would privatise constitutional disputes and risk
fragmenting constitutional jurisprudence.
 This ruling signals:
o Strong judicial preference for court-based review of administrative
actions under PAJA.
 o A concern about ADR undermining the uniformity and public nature of
constitutional accountability.

Interpretations and Implications of ISO Leisure

1. Narrow View:
o Only claims formally lodged under PAJA for judicial review must go to
courts; other disputes might still be resolved through ADR.
2. Broad View:
o All administrative-law disputes are constitutional in nature and thus
unsuitable for ADR.
o This could severely restrict ADR's role in administrative justice.

Critical Perspective on ADR's Role

 Despite judicial caution, ADR holds valuable potential as part of a multi-

layered regulatory framework.
 Courts’ dominance of judicial review should not exclude the integration of
ADR mechanisms.
 A balanced system can promote both accountability and administrative
efficiency.
 ADR aligns with constitutional values by fostering access to justice,
participation, and timely dispute resolution outside courts.

Summary

Aspect Notes
Purpose of To complement judicial review by offering informal, speedy, cost-
ADR effective, and expert dispute resolution in administrative matters
Public Protector Act (s6(4)), Municipal Finance Management Act
Statutory
(tender dispute resolution clauses), Tax Administration Act (ADR
Support
procedures)
Informality, speed, lower cost, self-correction by administration,
Benefits
specialized expertise
Judicial reluctance especially post-ISO Leisure judgment; PAJA’s
Limitations requirement that judicial review claims go to High/Constitutional
Court
ISO Leisure Prohibits arbitration of PAJA-based disputes; fears privatisation of
Judgment constitutional review
ADR remains a valuable complementary mechanism, but courts
Outlook guard the primacy of judicial review in constitutional administrative
disputes

Cases:
Economic Freedom Fighters v Speaker of the National Assembly and Others
2016 (3) SA 580 (CC)

F – Facts

 Parties: The applicants were the EFF and DA, with Corruption Watch as
amicus curiae, bringing applications against the President, the Speaker of
the National Assembly, and the Public Protector.
 Background: The dispute arose from the Public Protector’s report on non-
security upgrades at President Zuma’s Nkandla residence. The report
directed the President to repay a reasonable portion of the costs.
 Response: The President did not comply. The National Assembly
adopted a resolution that effectively replaced the Public Protector’s findings
with its own exonerating decision.
 Litigation: The EFF and DA approached the Constitutional Court to assert
the binding nature of the Public Protector’s remedial action, and to
declare that both the President and the National Assembly failed to fulfill
their constitutional duties.

I – Issue

1. Is the remedial action of the Public Protector binding and enforceable

under section 182(1)(c) of the Constitution?
2. Did the President and the National Assembly fail in their constitutional
obligations by ignoring or undermining the Public Protector’s findings?
3. Does the matter fall within the exclusive jurisdiction of the Constitutional
Court under section 167(4)(e)?

R – Rule

 Section 182(1)(c) of the Constitution authorizes the Public Protector to take

“appropriate remedial action,” which must have real legal force.
 Sections 83, 96, 181(3) impose duties on the President to uphold and protect
the Constitution and support Chapter 9 institutions.
 Sections 42(3), 55(2) assign the National Assembly the role of overseeing
executive action.
 Section 167(4)(e) gives the Constitutional Court exclusive jurisdiction in
disputes involving constitutional functions of national/provincial organs of
state.
 Doctrine of legality and rule of law: All public power must be exercised
lawfully; ignoring binding legal instruments is unconstitutional.
 Separation of powers: No organ of state may override the functions of
another; checks and balances are constitutionally entrenched.

A – Application

 The Court held that remedial action by the Public Protector is binding
unless set aside by a court.
  The President violated his constitutional duties by failing to implement the
remedial action and acted unlawfully by effectively ignoring it.
 The National Assembly failed to hold the President accountable and acted
inconsistently with its constitutional oversight duty by substituting the
Public Protector’s findings.
 The Court confirmed that it had exclusive jurisdiction, as the dispute
concerned constitutional functions of organs of state and involved
accountability of top executive institutions.

C – Conclusion

 The Public Protector’s remedial action is binding and cannot be ignored or

replaced by other institutions.
 The President’s conduct was unconstitutional and breached his oath of
office.
 The National Assembly’s resolution was unlawful and unconstitutional.
 The Constitutional Court had exclusive jurisdiction over the matter.
 The President, National Assembly, and Minister of Police were ordered to
pay legal costs.

Significance:

This case reaffirmed the constitutional authority and independence of the Public
Protector, emphasized the binding nature of remedial action, and clarified the
limits of political self-regulation in constitutional democracies. It is now a
cornerstone of South African constitutional and administrative law.